MEMORANDUM OF WRIT PETITION UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDIA

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS (SPECIAL ORIGINAL JURISDICTION)

 

W.P. No.             OF 2022

 

1. Elango

S/o Thirunavukkarasu

Hindu, aged 50 years

Plot No. 63, Door No. 1, 3^rd Cross Street

Thillai Nagar, Kolathur

Chennai 600 099                                                                                                                     …Petitioner

Vs

 

1. Union of India represented by its Joint Secretary

Department of Home Affairs (Disaster Management)

North Block, Central Secretariat

New Delhi 110 001

 

2. The Secretary to the Government of India

Ministry of Culture

502 C, Shastri Bhawan

New Delhi 110 015

 

3. The State of Tamil Nadu represented by its Additional Chief Secretary to Government

Department of Revenue and Disaster Management

Land Administration Wing 1(2) section

Fort St. George, Chennai 600 009

 

4. The State of Tamil Nadu represented by its Secretary

(In the rank of Additional Chief Secretary)

Department of Tourism, Culture and Religious Endowments  Government of Tamil Nadu, Fort St.George Chennai – 600 009.

 

5. The Commissioner,

Hindu Religious and Charitable Endowment Department,

Mahatma Gandhi Road,

Nungambakkam, Chennai-600 006

 

6. The Commissioner

Department of Revenue and Disaster Management

Ezhilagam, Chepauk

Chennai 600 005

 

 

7. The Principal Secretary and Commissioner of

Land Administration

Government of Tamil Nadu

“Ezhizhalagam”,

Chepauk,  Chennai 600 005                                                                                         …Respondents

 

 

AFFIDAVIT OF T.ELANGO

I,  T.Elango, Son of Thirunavukkarasu, Hindu, aged 50 years, residing at Plot No.63, Door No.1, 3^rd Cross Street, Thillai Nagar, Kolathur, Chennai 600 099 do hereby solemnly affirm and sincerely state as follows:

1. I submit that I am the petitioner herein and as such I am well acquainted with the facts and circumstances of the case. I am filing this writ petition in public interest, out of my own funds. I submit that I have been involved several public interest litigations earlier. I submit that I am presently holding the responsibility and functioning as the Tamil Nadu State Spokesperson of Hindu Munnani, an organization, working to protect the interests and Constitutional rights of Hindus, guaranteed under Articles 25 and 26 of the Constitution of India.
2. I submit that I am doing business for my sustenance and my AADHAR

Card number is 6618 4784 7525 and my PAN Card number is AAEPE2674G.  I submit that I am filing the present public interest litigation out of my own funds.  I am filing the present Writ Petition based on the information and personal knowledge and also on information furnished by the officials and other residents in the State of Tamil Nadu. The sources have been collected by me and copies of the same are filed in the typed set of papers.

3. I submit that temples in India have always had a water body near its premises. Whether it is a natural pond, a free-flowing river or a man-made tank, the water inside them seem to imbibe the sacredness associated with the temples, thereby becoming an integral part of the cultural, social and religious landscape of that area.
4. I submit that for instance, the Mahamaham tank in Kumbakonam, Tamil Nadu, is one such tank in the heart of the Cauvery delta. There is no concrete evidence of when it was built, though the puranas (ancient texts) mention Lord Rama bathing in its water. It finds mention in old religious texts, and is adulated in verse by the famous Tamil poets and saints, Appar and Tirunavukkarasar. This is where the Mahamaham festival is held every 12 years. The festival is the southern equivalent of the Kumbh Mela held at the confluence of the Ganges at Prayag. Lakhs of pilgrims throng the tank to take a dip in its holy water. In this case, the water body namely Mahamaham tank of Kumbakonam, itself is being worshipped by the Hindus all over the world.
5. I submit that the recent rains and the way Chennai city and many other parts of the state got inundated threw light on one of the most pertinent issues namely, encroachment of the water bodies. This Honourable High Court has been hearing public interest litigation cases with regard to encroachment of various water bodies across the state. I submit that the State Government has informed this Honourable High Court that 47,707 acres belonging to waterbodies across the State have been under encroachment.
6. I submit that the State Government has proposed an umbrella Act would be brought in for eviction of encroachment and protection of the waterbodies in the forthcoming session of the State Assembly. According to a status report, filed by the State Government, the number of encroachments made on waterbodies is 4, 40,927.
7. I submit that close to 10,556 Acres of waterbodies land has been encroached for residential purposes, 1,500 Acres used by commercial establishments, and 32,024 Acres for cultivation as per the rough data submitted by the Government. It is not just private organisations or industries or religious institutions that have encroached water bodies, even Government buildings have been constructed on nearly 1,311 Acres of encroachments.
8. I humbly submit that out of all these encroachments, and out of the blue, the Government has thought it fit to demolish the Hindu Temples alone. I submit that in the recent months near about 200 temples have been demolished by the Governmental Authorities on the ground that they are encroaching upon the water bodies or encroaching the Government Lands. Many of these temples are older than 100 years. I submit that the respondents and the officers working under them are issuing notices to those temples, which are adjacent to the water bodies under Section 30(2)(ii) and 34(k) of the National Disaster Management Act, 2005 which read as under: –

“30(2)(ii)-ensure that the areas in the District vulnerable to disasters are identified and measures for the Prevention of Disaster and the mitigation of its effects are undertaken by the Departments of the Government at the District Level as well as by the Local Authorities.

34(k)-construct temporary bridges are necessary structures and demolish structures which may be hazardous to public or aggravate the effects of the disaster”.

9. The sample list of Hindu temples, which have been demolished in the recent past are as under:-

LIST OF SOME TEMPLES DEMOLISHED IN TAMIL NADU

S.No	Year	Date	District	Location	Temple
1.	2017	Aug        21, 2017	Thanjavur District	1000 years old Naganathaswamy Temple                    at Manampadi	1000        years         old Naganathaswamy Temple at Manampadi
2.	2020	September 22, 2020	Thanjavur District	Thanjavur          Nagai Road	Adimariamman temple, Thanjavur Nagai Road
3.	2021	Jul         17, 2021	Coimbatore District	Muthannankulam tank                  bund, Coimbatore	7 temples: Amman Kovil, Bannari Amman Kovil,                   Angala parameswari, Karuparyan Kovil, Muniswaran Kovil and some other temples
4.	2016	August 25, 2016	Namakkal District	Tholur, Namakkal	800         years          old Choloswarar temple at Tholur, Namakkal
5.	2021	Aug        23, 2021	Madurai District	Ottakkadai, Madurai	Ottakkadai, Madurai

 

6.	2020	12-Jun-20	Thenkasi District	Sammenkulam Village, Thenkasi	Kattuppasathy Madasamy temple in Sammenkulam village, Thenkasi
7.	2021	Nov         16, 2021	Cuddalore District	Chidambaram	Veera Sakthi Anjaneyar Temple, Keezha Veethi, Chidambaram
8.	2015	Nov         29, 2015	Tirupur District	Papini     in     Tirupur District	Arulmigu Periyanayagi amman Temple at Papini in Tirupur District, 330 yrs old
9.	2015	Nov         29, 2015	Erode District	Veerappan Chathiram in Erode District	200 years old Arulmigu Mariamman Temple, Veerappan Chathiram in Erode District
10.	2015	Nov 29,2015	Namakkal District	Periyur, Thummankurichi in Namakkal District	100 years old Arulmigu Marudhakali Amman Temple in Periyur, Thummankurichi in Namakkal District
11.	2021	December 16, 2021	Nagercoil	Nagercoil	Planned demolition of Selvaraja Ganapati Selva Vinayagar temple, Nagercoil
12.	2021	August 21, 2021	Madurai District	Ilangaivendalpatti, near Madurai	Ilangaivendalpatti, near Madurai
13.	2020	Aug        25, 2020	Thoothukudi District	Ganesapuram, Tuticorin	Ganesapuram, Tuticorin
14.	2021	August 9, 2021	Thoothukudi District	Thoothukudi	Isakkiyamman Temple, Tuticorin
15	2021	August 24, 2021	Thoothukudi District	Theresapuram, Thoothukudi District	Rajrajeswari      Temple, Theresapuram

 

16.	13.07.1905	November 21, 2021	Thiruvallur District	Thiruvallur District	Ambal            Temple, Thiruvallur District
17.	2017	2017	Erode District	Unlalur              near Kodumudi	500 years old Shiva temple at Unlalur near Kodumudi, Erode District
18.	2021	Dec       05, 2021	Cuddalore District	Kattumannar Koil	Muthumariamman Temple, Kattumannar      Koil, Cuddalore District
19	2022	January 10, 21	Kanchipuram District	Varadharajapuram, Mudichur	Sri          Narashimha Anjaneyar Temple
20	2021	December 3, 2021	Sivagangai District	West                Bank, Swarnakaleeswarar Teppakulam, Kalavarkoil	Sri              Anjaneyar Temple
22.	2021	December 19, 2021	Coimbatore District	Pattinam, Sulur	Vasudevan Temple and 2 other Temples

 

10. I submit that I am praying for the relief of Declaration, declaring that the respondents are Constitutionally bound under Articles 25 and 26 of the Constitution of India, to draw a scheme for regularization or re-location of the Hindu Temples or any religious structures in the State which have been built on Poramboke lands either objectionable or un objectionable for removal of encroachments either under the National Disaster Management Act, 2005 or under the Tamil Nadu Land Encroachment Act, 1905 or under any other law on the following amongst other

 

 

GROUNDS

1. A) The Honourable Supreme Court in Union of India and another Vs State of Gujarat and other (SLP (C ) No.8519 of 2006 has held that

” … In pursuance of the order of this Court dated 29th September, 2009, by which this Court directed that henceforth no unauthorized construction shall be carried out or permitted in the name of Temple, Church, Mosque or Gurudwara etc. on public streets, public parks or other public places, the affidavits of all the States and the Union Territories, except the State of Uttarakhand, have been filed. All the States and the Union Territories have taken necessary steps to ensure that no further unauthorized construction shall take place and Court’s directions are seriously and meticulously complied with.The other part of the directions issued on 29th September, 2009, were that in respect of unauthorized construction of religious nature which has already taken place on public streets, public parks or other public places, the State Governments and the Union Territories were directed to review the same on case to case basis and take appropriate steps as expeditiously as possible. We do not find comprehensive and satisfactory affidavits as far as this direction of the order is concerned. Therefore, it has become imperative to direct all the States and the Union Territories to formulate comprehensive policy regarding the removal/ relocation/regularisation of the unauthorized construction within six weeks’ from today.

 The policy should clearly indicate within what period the States and the Union Territories are going to fully comply with its policy to remove/relocate/regularise the unauthorized construction.

We also direct all the States and the Union Territories to identify unauthorized construction of religious nature on public streets, public parks and public places within six weeks’ from today. We direct the Chief Secretary of the State of Uttarakhand to file an affidavit within two weeks from today. In case the affidavit is not filed, the Chief Secretary shall remain present in Court on the next date of hearing.

We also direct all the Chief Secretaries of the States and the Administrators of the Union Territories to file further comprehensive affidavits within six weeks’ from today.

The special leave petition is adjourned to 6th April, 2010.” To ensure the implementation of directions issued by this Court, consensus has been arrived at Bar and in our opinion, rightly, that the implementation of the order should be supervised by the concerned High Courts. We, consequently, remit the above matters to the respective High Courts for ensuring implementation of the orders in effective manner.

The concerned records be transmitted to the respective High Courts. The interim orders wherever passed, shall continue, until the matters are considered by the High Court. In case any clarification is required, it would be open to the parties to approach this Court. The High Court will have the jurisdiction to proceed in the Contempt of any of the orders passed by this Court. Pending applications shall also be transmitted to the High Court.”

Hence what has been directed by the Honourable Supreme Court is to regularise, where ever possible and in case of compulsions, the religious structures need to be re-located and not mere removal.

This requires a scheme to be framed by the State of Tamil Nadu and this has not been done till date. Hence the Declaration as prayed for may be granted.

30. B) In Akila and Another v. The Govt. of Tamilnadu Represented By Its Secretary and Others (Judgement dated 30.04.2009 in Writ Petition No. 30779 Of 2008 And Writ Petition No. 2670 Of 2009), a Division

Bench of this Honourable Court granted permission to shift the Temple inside the Omandurar Government Estate, Chennai to a larger space allotted by the Government with the following observations:

“…In this case, democratically elected Government has chosen the site which is centrally located in the city. Considering availability of larger Government land and other advantages, the Government decided to construct the State of Art, New Assembly Complex for Legislative Assembly at the Government Estate. The action is a secular and sovereign function of the state. In the best interest of worshippers and the temple, it is better to have a more spacious place (newly located place) for the temple. Relocation of the temple for the purpose of construction of the Assembly complex, in the opinion of this Court, would not infringe Article 25 and 26 of the Constitution of India. In fact, the Government has come forward to allot more spacious place and even offered to construct temple out of its own funds. The Government, after taking the opinion of the reputed experts who are well versed in Hindu Religious matters and aagamaas has taken the decision to shift the temple. There is no contra opinion produced by the petitioner. Hence, the action of the Government cannot be found fault with. Moreover, no malafide has been attributed against the Government.

…

30. The construction of secretariat complex is a sovereign function of the Government. As a secular state, the Government definitely would have replaced even if it is a place of worship of other religion also, if they are found to be within the proposed building area. The Government is functioning only for the welfare of the people and constructing a secretariat/assembly complex is the duty of the Government. While discharging the duty with a bonafide intention, the Government is relocating the temple by allotting a suitable land and the same cannot be faulted with.

  …. (b) The petitioner cannot insist that the temple should not be relocated contending the deity is Swayambulingam which is not proved by the petitioner. Moreover, the land on which the temple is located belongs to the Government.

 (c) Relocation of the temple in a larger extent of land would not infringe petitioners right guaranteed under Article 25 and 26 of the Constitution of India.

• The relocation of temple is for the construction of Assembly complex which is a sovereign function of welfare state and the same cannot be faulted, in the absence of malafide.
• The relocation of temple is being done only after taking opinion of Scholars/Experts in Hindu Religious matter without hurting religious sentiments.

Thus there is a precedence of re-locating a Temple for the larger interest of a Welfare State at an alternative accommodation. This is not being followed in the present action of the Government demolishing the Hindu Temples alone. Hence the Declaration as prayed for may be granted.

1. It is submitted that the whole area of a Tamil village dating to ancient Chola period and thereafter, was divided into various classifications, one among which, as Poramboke lands. The Poramboke lands are incapable of cultivation or set apart for public or communal purposes. Though there are various types of poramboke lands, in common parlance, any land that does not yield revenue, is known as poramboke land, but it is liable to tax, however the right to levy assessment on it, is given up by the Government for certain reasons. The four main classifications of waste lands under Ryotwari System that exist today, are (a) assessed (b)unassessed (c) poramboke and (d) reserved. The poramboke denotes lands set apart for public or communal purposes. They are also unassessed. Natham or Gramanatham is the site on which village habitations are situated and is held free of assessment. Except the Natham poramboke, which is permitted for inhabitation, all other poramboke such as lake, river, hill, grazing ground, cattle pond, forest and similar classification of poramboke of public use or common use are completely. It is submitted that this Honourable Court in N.S. Kuppuswamy Odayar Vs Nathangudi Panchayat (1971 I MLJ 190) has held “mere fact that in the resettlement register, a particular piece of land has been described as Poramboke, will not by itself, establish title of the Government to theland in question. In Muthammal Vs State of tamil Nadu, (2006 (3) LW 361), thisHonourable Court has observed

“ Learned Senior Counsel also clarified that in Natham, first occupier will be treated as the Owner and no patta will be given to them. Patta is issued only for the assessed lands and it is the settled law. That is why, Natham is called as Poramboke i.e., “poram” is outside; “poke” is the revenue record. Thus the word “Poramboke Lands” means the lands which is not assessed to revenue records and it is outside the revenue accounts. Likewise, “gramanatham” is defined in the Law Lexicon as

“ground set apart on which the house of village may be built”. Similarly, Natham land is described in Tamil Lexicon published under the Authority of the University of Madras to the effect that it is a residential portion of a village inhabited by the Non-Brahmins; or land reserved as house-sites etc., Learned Senior Counsel also relied on very many decisions of this Court as well as Apex court to the effect that Poramboke does not incude Natham and Gramanatham never vest with the Government, which will be referred to in the later part of the Judgement.” 

The above decision has been followed by Justice V.Ramasubramanian as he then was, in AR Meenakshi Vs State of Tamil Nadu (2013 (4) LW 76). Therefore a Poramboke land does not becomes Government Land automatically. The occupier of the Poramboke Land is entitled for relief of alternate accomadation in the event of eviction. Hence the Declaration as prayed for may be granted.

1. In Thillaivanam, A.K. and another Vs. District Collector, Chengai Anna

District and three others [1998 (3) LW 603], this Court pointed out that village natham is a land, which never vest with the Government. Therefore, the Court pointed out that persons, who are admittedly in exclusive possession of such property and who were never assessed to penal charges, or issued with B-Memos should be taken to have acquired a valid right to the land. Hence the Declaration as prayed for may be granted.

1. It is submitted that under Revenue Standing Order 15 (5) only lands which are grazing poramboke, Tank Bed lands are unassignable. In fact, many of these temples have occupied a small portion of the land falling within the definition of encroachments which can be ignored as classified under Revenue Standing Order 26 (10). In fact, many of the temples are situated at lands classified as Temple Poramboke under Revenue Standing

Order 26 (13). In any event, Revenue Standing Order 26 A deals with Exchange of Land at the disposal of the Government for Private land. The respondents have not followed any of these procedures while demolishing the Temples. These demolitions of Hindu Temples alone in the State of Tamil nadu are nothing but discrimination in the matters of eviction of encroachments. The entire State machinery is bent up on demolishing the Hindu Temples alone, leaving aside the encroachments of the religious structures of Christians and Muslims which are occupying objectionable lands of the government.  Hence the Declaration as prayed for may be granted.

1. It is submitted that under Revenue Standing Order 15 (5) only lands which are grazing poramboke, Tank Bed lands are unassignable. In fact, many of these temples have occupied a small portion of the land falling within the definition of encroachments which can be ignored as classified under

Revenue Standing Order 26 (10). In fact, many of the temples are situated at lands classified as Temple Poramboke under Revenue Standing Order 26 (13). In any event, Revenue Standing Order 26 A deals with Exchange of Land at the disposal of the Government for Private land. The respondents have not followed any of these procedures while demolishing the Temples. These demolitions of Hindu Temples alone in the State of Tamil nadu are nothing but discrimination in the matters of eviction of encroachments. The entire State machinery is bent up on demolishing the Hindu Temples alone, leaving aside the encroachments of the religious structures of Christians and Muslims which are occupying objectionable lands of the government.  Hence the Declaration as prayed for may be granted.

1919. In The State of Madras vs. Kasturi Ammal [1974 (87) L.W. 531] the Honourable Division Bench of this Honourable Court dealt with a case, where a land was taken possession of by a panchayat by offering to purchase it from the person in possession on the ground that the land was required for erecting water works. After taking possession, the panchayat (which later became a municipality) and the State Government refused to pay compensation for the land on the ground that the land was partly a road poramboke and partly a natham poramboke according to a survey held in 1919. Therefore, the State and the municipality contended that the land had already vested with the Government in terms of Section 2(1) of the Tamilnadu

Land Encroachment Act 1905 and also in terms of Tamilnadu Act XXX of 1963. Hence, the person, claiming to be the owner, filed a suit for declaration of title and also for compensation. The suit was decreed on the ground that the State was estopped from denying the title of the plaintiff. The appeals filed by the State and the cross objections filed by the plaintiff for enhancement of the compensation, came up before a Division Bench of Ramaprasad Rao and Natarajan,JJ. After referring to the decision of Subrahmanyam,J in S.Rengaraja Iyengar, the Division Bench referred to a few other decisions in paragraph 14 and elicited the principle of law in paragraph 15. Paragraphs 14 and 15 of the decision are extracted as follows “14. We may also usefully refer to some other decisions which hold that the statutory machinery provided under Act XXVI of 1948 or Act XXX of 1963 as the case may be can have jurisdiction only in respect of those matters, such as the grant of ryotwari patta, provided under the Act and that such machinery, being the creatures of the statute, cannot deal with a civil right, the determination of which can be done only by a civil Court. In State of Madras Vs. Umayal Achi and Ors. L.P.A.No.106 of 1959., it was held that the civil Court had jurisdiction to entertain the suit for a mere injunction restraining the Government from arbitrarily and oppressively applying the provisions of the Land Encroachments Act to persons like the plaintiff who have been in occupation of lands in a notified estate even prior to the date of the notification. In The State of Madras Vs. Parisutha Nadar (1961) 2 M.L.J.285., it has been held that it is not open to the Government in the course of the proceedings to put forward its own title to the property sought to be acquired so as to defeat the rights of the persons entitled to the compensation. In State of Madras Vs. Ramalingasami Madam , a Bench of this Court held as follows: “It is clear from the provisions of the Act (XXVI of 1948) that what really vests in the Government in respect of a ryoti or private land is merely title and there is no vesting of possession, which is protected under the proviso to Section 3(d) of the Act. So long as the possession of the land continues to vest in the ryot, he would be entitled to protect his rights in respect of the same by resorting to civil Courts.” Though there is a long catena of decisions in this behalf, we have adverted to a few only as it is unnecessary to make reference to all of them in view of the fact that the law is now well settled that the statutory machinery created by either Act XXVI of 1948 or Act XXX of 1963 can exercise jurisdiction only in respect of those matters which are specified in the enactments and cannot pervade the field of civil litigation which is exclusively that of the civil Court. The learned Additional Government Pleader invited our attention to a Bench decision of this Court in Raja of Vizianagaram, In re Raja of Vizianagaram (AIR 1953 Mad 416), which, according to him, has a bearing on the case. A scrutiny of the judgment, however reveals that the ratio decidendi in that case has no application whatever to the controversy raised for decision in the appeal. In the above said case, the Raja of Vizianagaram contended that certain housesites, though forming part of the estate of Vizianagaram, must be held to be sites given free to the Zamindar without any additional assessment and that therefore, the vacant sites must be held to fall outside the scope of the permanent settlement. Rajamannar, C.J., and Venkatarama Aiyar, J. (as he then was), if we may say so with great respect, rightly held that the contention was fallacious because what happened to the Zamindar under the Sannad was not confined to the lands on which peishkush was calculated and that the fact that in 1802, no income accrued to the Zamindar in the house-sites did not really affect the question. It is also significant to note that the Bench, notwithstanding such a pronouncement held, that “the right of the Government to take over the house-sites also along with the estate was however, subject to the claim of the zamindar, if any, under Section 12and similar provisions of Act XXVI of 1948 to be granted ryotwari patta.”

Hence, it is now well settled that even in cases of occupation of Poramboke Lands,  the first occupier has certain legal rights on possession and the same cannot be taken away by abusing the powers under the National Disaster Management Act, 2005 to demolish the Temples. The Union of India has been added as a party so as to answer whether the provisions of the

National Disaster Management Act, 2005 can be invoked to bulldoze the Temples just because they happen to be on the banks of a waterbody, by ignoring the rights vested with the Temples under the Civil Law. Hence the Declaration as prayed for may be granted.

27. It is submitted that the Government of Tamil Nadu in 2018 formulated a Scheme to regularise the encroachments of the citizens in objectionable poramboke lands for residential purposes and a Government order was passed in G.O.Ms.No.465 Revenue & Disaster Management Department, dated 27.11.2018, for implementation of a special scheme to identify alternate lands or to purchase private lands to re-locate the objectionable encroachments. Similarly, in G.O.Ms.No.496 Revenue & Disaster Management Department, dated 24.12.2018, was passed to regularise the encroachments in un objectionable poramboke lands. Hence the Declaration as prayed for may be granted.
28. It is submitted that the first respondent passed a Government Order framing a scheme to distribute the Temple lands against law in G.O.Ms. No.318 Revenue & Disaster Management Department, Land Administration Wing, LA 1(2) Wing dated 30.08.2019, wherein the object of the first respondent was to acquire temple lands to provide free patta to poor families in violation to the step by step procedure set out in Section 34 of 1959 the

Tamil nadu Hindu Religious and Charitable Endowments Act, 1959 and Alienation Rules. The English translation of the Para 4 (v) of the said G.O. reads as follows:

           “Regarding            housing encroachments                 in             Temple             Lands,

inconsideration of the welfare of the poor families who stay in Temple Lands, subject to rules, for the purpose of regularisation by issuing House Site Pattas to qualified persons, the lands are to be duly acquired and for fixing the land value the guidelines prescribed in G.O. (Ms) No. 200 Tourism, Culture and Religious Endowments Department dated 02.11.2018 should be followed. Proposals for these should be collated District wise and land owning temple wise should be forwarded to the Government through the Commissioner, of Hindu Religious and Charitable Endowments Department and the regularization should be carried out based on Government orders”.

It is submitted that the plain reading of aforesaid para 4(v) clearly establishes that the step by step procedure laid down under Section34 of 1959 the Tamil nadu Hindu Religious and Charitable Endowments Act, 1959 and Alienation Rules has been ignored, but the proposals has been sought from other departments by collating the details of temple lands to be acquired by the Government ostensibly under state land acquisition laws and sales by

HR&CE Department, at the behest of other departments of the Government.

It is submitted that as against the said move of the Government to rob the

Temples of their land, public interest litigations came to be filed in WP Nos. 27728, 32053 32387 and 32698 of 2019 and interim orders have been granted by this Honourable Court on 22.11.2019 restraining the third respondent to proceed with the lands of the Temples. In the said Writ Petition, the Government has filed a counter affidavit admitting that there are huge encroachments in the Temple Land and hence as a welfare state, they wanted to gift those lands to the encroachers.  Thus on the one hand the Government machinery is bent up on to usurp the lands of the Temples claiming to be a welfare state. On the other hand, the very same Government Machinery is indulging in a Mughal Era task of demolishing Hindu Temples across the state citing various reasons from being an encroachment in a water body to being an encroachment on a government poramboke. When it comes to an encroachment by a Non Hindu religious structure, the State machinery goes to an inertia as it will have a political back lash. Hence the Declaration as prayed for may be granted.

18. The Honourable First Bench of this Honourable High Court at Madurai in WP (MD) No.17257 of 2020 (V.Vaira Sekar Vs The Secretary to Government Home and others) on 18.01.2021 has been pleased to deal with the construction of unauthorized statues on Government land and has been pleased to pass an order as under:.

“ 2. Indeed, unauthorized construction appears to be mushrooming on revenue land all over the place. The Government of the day has to ensure a sense of discipline and uniformly demolish any kind of unauthorized construction on revenue land, be it construction of any religious idol or made for political considerations.

3. The message has to be sent loud and clear that no illegal set of persons or political big shot has the right to put up or encroach any public land by putting up any kind of construction without following appropriate procedure and after obtaining due permission from the local authorities in accordance with law.
4. A status report on the matter must be presented within a fortnight from the date. A comprehensive view has to be taken on all illegal and unauthorized constructions in public places all over the State.” It is submitted that the directions of this Honourable Court has not at all been complied with till date.

1. It is further submitted that the members of the Muslim community in the State are using Loud Speakers for Azan in spite of its ban by

Honourable Supreme Court. Furthermore, in Church of God (Full Gospel) in India, v. K.K.R. Majestic Colony Welfare Association and Ors. reported in (2000) 7 SCC 282, the Honourable Supreme Court while deciding a case of noise pollution caused due to prayer meetings, made observations with regard to the interplay of right to practice religion and its threshold, and the same is extracted hereunder:

“13. In the present case, the contention with regard to the rights under Article 25 or Article 26 of the Constitution which are subject to “public order, morality and health” are not required to be dealt with in detail mainly because as stated earlier no religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by beating of drums. In any case, if there is such practice, it should not adversely affect the rights of others including that of being not disturbed in their activities. We would only refer to some observations made by the Constitution Bench of this Court qua rights under Articles 25 and 26 of the Constitution in Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat [(1975) 1 SCC 11].  After considering the various contentions, the Court observed that: (SCC p. 20, para 30) “No rights in an organized society can be absolute. Enjoyment of one’s rights must be consistent with the enjoyment of rights also by others. Where in a free play of social forces it is not possible to bring about a voluntary harmony, the State has to step in to set right the imbalance between competing interests….” The Court also observed that: (SCC p. 20, para 31) “A particular fundamental right cannot exist in isolation in a watertight compartment. One fundamental right of a person may have to coexist in harmony with the exercise of another fundamental right by others and also with reasonable and valid exercise of power by the State in the light of the Directive Principles in the interests of social welfare as a whole.”

It is submitted that Rules prescribing reasonable restrictions including the Rules for the use of loudspeakers and voice amplifiers framed under the Madras Town Nuisances Act, 1889 and also the Noise Pollution (Regulation and Control) Rules, 2000 are required to be enforced, which have not been done till date.

24. It is submitted that this Honourable High Court found that the Revenue authorities were hand in glove in an illegal encroachment for the construction of a Church on a land meant for Grazing Poramboke at Pennalur village, Sri Perumbudur Taluk, Kancheepuram District and under the Judgement dated 24.11.2021 in WP No.11707 of 2013 (M.Murugesan Vs The District Collector and others) has passed the following orders:
25. This being the facts and circumstances, this Court is inclined to pass the following orders:

“(1) The respondents 1 to 3 are directed to demolish the unauthorized building constructed by the 4th respondent in the -Government Meikal Poromboke land- within a period of four weeks from the date of receipt of a copy of this order. 

• The fourth respondent if owns any land, then he is at liberty to submit a fresh application along with all the necessary relevant documents to the competent authority, seeking permission to construct a building and carry on the Church activities, after getting approval from the competent authorities under law.
• The District Collector is directed to conduct an enquiry in respect of the negligence, dereliction of duty and lapses committed on the part of the respondents 2 and 3 in not initiating action in spite of the complaint and permitting such illegal activities to go on in respect of the Meikal Poromboke land and institute disciplinary proceedings and all further actions against all such officials, who have involved in such activities.
• The District Collector is directed to conduct an enquiry in respect of the resolution passed by the Panchayat in an unlawful manner and in violation of the provisions of the Act and Rules and initiate all suitable actions against the persons involved in passing such Resolutions.
• It is needless to state that any such illegal encroachments or illegal constructions of religious institutions are found, then the District Collector is bound to initiate actions by following the procedures as contemplated under law.”

 

1. It is submitted that in another case the land measuring

Acre 0.4.6 Cents of land Survey No. 85/7 in Door No. 6/25, Mangalam Road, Avinashi, Tiruppur District, encroached for construction of mosque near the 1000-year-old Avinashi Temple. Incidentally the land encroached up on to construct the mosque is part of the Police Quarters of Avinashi Police Station in Survey

Number 85A/5, Avinashi, Tiruppur District. In a Public Interest Litigation in WP No.11908 of 2018, the Honourable Division Bench of this Honourable Court passed orders to the District Revenue Authorities concerned to take a decision on or before 30.06.2021. The authorities are refusing to exercise their Jurisdiction fearing a political backlash even though the land encroached up on to construct the religious structure of Muslims belong to none other than the Police Department.

1. It is submitted that the intention of the petitioner is not to stop the removable of encroachments, but do the same in the manner known to law. As the measures of demolition of the Hindu

Temples are taken under the National Disaster Management Act, 2005, it is pertinent to bring to the notice of this Honourable Court of the amendment brought out to this enactment is 2016 which mandates for a preparation of the National Plan for Disaster management and the The National Plan shall include—

• measures to be taken for the prevention of disasters, or the mitigation of their effects;
• measures to be taken for the integration of mitigation measures in the development plans;
• measures to be taken for preparedness and capacity building to effectively respond to any threatening disaster situations or disaster; (d) roles and responsibilities of different Ministries or Departments of the Government of India in respect of measures specified in clauses (a), (b), and (c). 35. Similarly the same is expected from each State including the State of Tamil nadu. Hence the Declaration as prayed for may be granted.

2005. It is submitted that the third respondent has prepared a Tamil Nadu State Disaster Management Plan 2018-2030, where in wherein they have not drawn up a scheme for re-location of the Temples or any religious structures in the State which have been built on Poramboke lands either objectionable or un objectionable. The non-drawal of a scheme to re-locate the Temples and the act of simply demolishing the Temples without an alternate provision of land would not fall within the term “mitigation of disaster management” under the National Disaster Management Act, 2005.

The respondents 3 to 7 ought to draw up a scheme for allocation of Temple lands where ever possible and in the alternative, the land of various Temples under the HR & CE Department can be considered for re-location or an Exchange of land could be considered under the Revenue Standing Orders. My respectful submission is demolishing a Temple without offering an Alternate site in case of an encroachment of objectionable Poramboke land violates the fundamental right guaranteed under Articles 25 and 26 of the Constitution of India. Hence the Declaration as prayed for may be granted.

I submit that I am constrained to file this Writ Petition under Article 226 of the Constitution of India and the petitioner has no other alternate and efficacious remedy. The petitioner has not moved any other court or forum for the very same relief prayed for in this Writ Petition. I submit that I have not filed any public interest litigation earlier and to my knowledge no other person has filed any Public Interest Litigation with respect to the subject matter. I hereby undertake to pay to costs if, it is found at any time that it is found to be intended for personal gain or motive.

It is therefore just and necessary to intervene in the ongoing demolition process of demolishing the Hindu temples alone is liable to be intervened and interdicted. Unless there is a Judicial Intervention and Interdiction, the Tamil Nadu State Bureaucracy under the Respondents 3 to 7 which has a British colonial hangover mind set will have their run as that of a Bull in China Shop. It is therefore Just and necessary pass an order of Ad Interim Injunction restraining the respondents from continuing their demolition of Hindu Temples in the State under the guise of removal of encroachments whether objectionable or unobjectionable. Otherwise, the Religious freedom guaranteed to Hindus under Articles 25 and 26 in the State of Tamil nadu will be infringed up on by the State. Hence the balance of convenience is in favour of the granting of Interim orders.

For the reasons stated above, it is therefore prayed that this Honourable

Court may be pleased to pass an order of AD INTERIM INJUNCTION, restraining the respondents or any one working under them or receiving orders from them from demolishing the Hindu Temples in the State of Tamil nadu under the guise of removal of encroachments whether objectionable or unobjectionable under the National Disaster Management Act, 2005 or under the Tamil Nadu Land Encroachment Act, 1905 or under any other law pending disposal of the above Writ Petition and thus render justice.

For the reasons stated in the accompanying affidavit, it is therefore prayed that this Honourable Court may be pleased to pass orders, directions or writs in particular a WRIT OF DECLARATION, declaring that the respondents are Constitutionally bound under Articles 25 and 26 of the Constitution of India,  to draw a scheme for regularisation or re-location of the Hindu Temples or any religious structures in the State which have been built on Poramboke lands either objectionable or un objectionable for removal of encroachments either under the National Disaster Management Act, 2005 or under the Tamil Nadu Land Encroachment Act, 1905 or under any other law and issue such further or any other orders or directions deemed fit and proper in the facts and circumstances of this case and thus render justice.

 

Solemnly affirmed the contents         Before me of this affidavit on this the 31^st

day of January, 2022 and signed his

name in my presence at Chennai                                                Advocate-Chennai